Russ v. State , 2010 Fla. App. LEXIS 8234 ( 2010 )

36 So.3d 931 (2010)

Shawn Dewitt RUSS, Appellant,
v.
STATE of Florida, Appellee.

No. 2D08-3422.

District Court of Appeal of Florida, Second District.

June 11, 2010.

James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.

KELLY, Judge.

Shawn Dewitt Russ pleaded nolo contendere to robbery with a deadly weapon (count one) and resisting arrest without violence (count two). He was sentenced to 364 days' incarceration followed by three years' probation on count one, and a concurrent term of 364 days' incarceration on count two. Russ was later found in violation of his probation and sentenced to seven years' incarceration on count one and one year's incarceration on count two. He subsequently filed a Florida Rule of Criminal Procedure 3.800(b)(2) motion to correct illegal sentence alleging, in part, that his sentence on count two is illegal because he was never placed on probation for that offense. The trial court granted Russ's motion, but in resentencing the court again imposed a term of 364 days in jail on count two. As the State acknowledges, this was error because Russ was never sentenced to probation on count two and, therefore, the sentence imposed on that count following the revocation of his probation on count one is invalid.

Accordingly, we vacate Russ's sentence on count two and remand with instructions that it be stricken from the written sentencing documents.

NORTHCUTT and KHOUZAM, JJ., Concur.